Capay, Inc. d/b/a Farm Fresh To You

National Labor Relations Board - Board Decisions

Mar 4, 2016

363 NLRB No. 142 (N.L.R.B. 2016)

363 NLRB No. 142
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Capay, Inc. d/b/a Farm Fresh to You and Bakery,
Confectionery, Tobacco Workers and Grain
Millers International Union, Local 85. Case 20–
CA–166233
March 4, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on December 16,
2015, by Bakery, Confectionery, Tobacco Workers and
Grain Millers International Union, Local 85 (the Union),
the General Counsel issued the complaint on December
22, 2015, alleging that Capay, Inc. d/b/a Farm Fresh to
You (the Respondent) has violated Section 8(a)(5) and
(1) of the Act by failing and refusing to recognize and
bargain with the Union following the Union’s certifica-
tion in Case 20–RC–153475. (Official notice is taken of
the record in the representation proceeding as defined in
the Board’s Rules and Regulations, Secs. 102.68 and
102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations of the complaint, and asserting
affirmative defenses.
On January 11, 2016, the General Counsel filed a Mo-
tion for Summary Judgment. On January 13, 2016, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification on the basis
of its objections in the underlying representation pro-
ceeding.1

1 In denying the Respondent’s request for review of the Regional Di-
rector’s Decision Regarding Objections to Election and Certification of
Representative, the Board found that the Respondent did not timely
raise its allegations that the Union engaged in electioneering and sur-
veillance, but noted that in any event, the Respondent’s arguments
concerning those allegations lacked merit. Member Miscimarra would
have found that the Respondent sufficiently and timely raised its
electioneering and surveillance arguments in its objections, but agreed
that the Respondent failed to raise substantial and material issues
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered or previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a Cali-
fornia corporation with an office and place of business in
West Sacramento, California (the facility) and has been
engaged in the growing, packaging, shipping and retail
sale of produce.
During the 12-month period preceding November 30,
2015, the Respondent, in conducting its operations de-
scribed above, received gross revenues at its facility in
excess of $500,000 and purchased and received goods at
its facility valued in excess of $5,000 from sources di-
rectly outside the State of California.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on July 1,
2015, the Union was certified on July 30, 2015, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
Included: All full-time and regular part-time ware-
house employees employed by the Employer at its fa-
cility located at 3880 Seaport Blvd., West Sacramento,
California, including packers, lead packers, prepping,
and lead prepping.
Excluded: Maintenance, shippers, clerical, supervisors,
and guards as defined by the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.

regarding either argument. Capay, Inc. d/b/a Farm Fresh to You, Case
20–RC–153475, unpublished Order issued October 28, 2015, at 1 fn.1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
B. Refusal to Bargain
In September 2015, the Union verbally requested that
the Respondent recognize and bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of the unit.2
Since about November 10, 2015, the Respondent has
failed and refused to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the unit.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since about November 10,
2015, to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, Capay, Inc. d/b/a Farm Fresh to You, West
Sacramento, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from

2 The Respondent avers in its answer to the complaint that the Un-
ion originally demanded to bargain in writing on July 8, 2015, and
again demanded to bargain in writing on December 15, 2015. In light
of the Respondent’s admission of the complaint allegations that the
Union requested bargaining and it refused that request, we find that any
dispute regarding the specific date of the request fails to raise a material
issue of fact warranting a hearing.
(a) Failing and refusing to recognize and bargain with
Bakery, Confectionery, Tobacco Workers and Grain Mil-
lers International Union, Local 85 as the exclusive col-
lective-bargaining representative of the employees in the
bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
Included: All full-time and regular part-time ware-
house employees employed by the Employer at its fa-
cility located at 3880 Seaport Blvd., West Sacramento,
California, including packers, lead packers, prepping,
and lead prepping.
Excluded: Maintenance, shippers, clerical, supervisors,
and guards as defined by the Act.
(b) Within 14 days after service by the Region, post at
its facility in West Sacramento, California, copies of the
attached notice marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 10, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FARM FRESH TO YOU 3
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 4, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Bakery, Confectionery, Tobacco Workers and Grain
Millers International Union, Local 85 as the exclusive
collective-bargaining representative of the employees in
the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
Included: All full-time and regular part-time warehouse
employees employed by us at our facility located at
3880 Seaport Blvd., West Sacramento, California, in-
cluding packers, lead packers, prepping, and lead prep-
ping.
Excluded: Maintenance, shippers, clerical, supervisors,
and guards as defined by the Act.
CAPAY, INC. D/B/A FARM FRESH TO YOU
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-166233 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.